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OPINION

Believing Trump would make chumps of us all

Ruth Marcus
Published 12:00 p.m. ET May 8, 2018

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President Donald Trump’s new attorney Rudy Giuliani said he can’t rule out the possibility of Trump not complying with a Mueller subpoena. While at the same time suggested Michael Cohen could have paid other women on behalf of Trump. Veuer's Maria Mercedes Galuppo has more.
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WASHINGTON – We’re missing something important, indeed fundamental, in all the legal-political chatter about whether Donald Trump will answer questions from the special counsel and what might happen if the president refuses.

We need to keep in mind: This is the president, not an ordinary witness – or, to be more precise, ordinary subject – in a run-of-the-mill criminal investigation. That fact counsels, on the part of prosecutors, more respect for the president’s time and office than in the usual case. But it also calls for, on the part of the chief executive, more respect for and accommodation of the reasonable needs of the criminal justice system.

Please stop laughing. I know. This president has, for months, demonstrated the precise opposite, seeking to undermine the legitimacy of the Justice Department generally and special counsel Robert Mueller in particular. “This is a witch hunt like nobody has ever seen before,” Trump said Friday of Mueller’s probe. “The problem we have is that you have 13 people – they’re all Democrats, and they’re real Democrats; they’re angry Democrats.”

It is on us, the American people, not to accept this. We must not collude with him, however unwittingly, in lowering the bar for the behavior we should expect from a president.

In the current context, that would not only mean refraining from the kind of scurrilous criticism that has emanated from the president and his minions about the Justice Department and the Mueller investigation. See, for another example, Rudy Giuliani describing the New York FBI agents who raided the office and home of Trump lawyer Michael Cohen as “stormtroopers.”

It would also include a pledge to cooperate, to the extent possible, with investigators’ requests for documents or testimony. (This was, in fact, the approach of soon-to-depart White House lawyer Ty Cobb.) Yes, attorneys for an ordinary person in Trump’s circumstances would strongly advise him not to voluntarily answer questions from Mueller’s team. That advice would be amped up a thousand-fold by the reality-bending nature of Trump’s ordinary discourse, and the attendant additional legal jeopardy that presents.

But do we not – at least, should we not – demand more of a president than that he protects his own legal interests? Not out of the goodness of his heart – that naive I’m not – but out of a sense that the public expects more than simple compliance with the letter of the law and, more to the point, will punish a president who fails to live up to a higher standard?

Take a look at the topics about which Mueller is said to want to question Trump. They are all logical outgrowths of factual predicates. “They’re ridiculous questions,” Giuliani scoffed in an interview with Fox News. “‘What did you think?’ ‘What did you feel?’” But of course state of mind is central to any potential obstruction case. Any prosecutor would be derelict not to ask.

Under ordinary circumstances, although little is ordinary when a president is under criminal investigation, political considerations constrain legal strategy. What would be the fallout from facing a subpoena versus testifying voluntarily? What would be the political implications of claiming executive privilege? Of asserting the Fifth Amendment right against self-incrimination?

Compare Bill Clinton then to Trump now. Certainly, Clinton was no model of civic virtue or transparency. But his behavior looks like pattycake in contrast to Trump’s. Clinton was the one to call for a special counsel to investigate Whitewater, albeit under intense political pressure; Trump has never conceded the need for a special counsel. Clinton and advisers griped about the vast right-wing conspiracy against them and an out-of-control prosecutor in the form of Kenneth Starr, but with nothing like the venom exhibited by Trump.

When Starr sought Clinton’s testimony on Monica Lewinsky, Clinton’s lawyers slow-walked the independent counsel for months, and then bargained him down to a single, four-hour interview at the White House. But the prospect of Clinton’s refusing Starr and invoking his Fifth Amendment privilege against self-incrimination was politically unthinkable.

“Clinton’s political advisers told him that it was like placing a loaded gun to his head,” Ken Gormley wrote in his authoritative account of the investigation. “Invoking the Fifth Amendment sounded like admitting guilt, which seemed like a perfect recipe for impeachment and removal.”

That it is possible, now, to imagine Trump taking the Fifth and surviving is a measure of the brilliance and effectiveness of his scorched-earth strategy to discredit the investigation and investigators. If everything is rigged and everyone is crooked, good faith compliance is for chumps. But buying Trump’s narrative would make chumps of us all and a laughingstock of the rule of law. We cannot let that happen.